Justices Court Kennedy

Supreme Court litigators often play to swing justices, crafting arguments designed to appeal to those whose votes will make a difference.

Some justices appear to be learning the same lesson, aiming for the support of Anthony M. Kennedy, the justice in the middle, Linda Greenhouse writes in her Supreme Court memo for the New York Times.

Among them is liberal Justice John Paul Stevens, who appears to have secured Kennedy’s cooperation in a decision to hear an appeal by Guantanamo detainees.

When the court first declined to accept the appeal on April 2, only three liberal justices voted to take the case. Stevens did not provide the required fourth vote.

Instead, he joined with Kennedy in a statement that said it was appropriate to refuse cert because detainees had not yet pursued an appeal as permitted in the Detainee Treatment Act of 2005.

Greenhouse concludes Stevens was biding his time because he knew better than to push his colleague “too far, too fast. There was no point in granting a case to which Justice Kennedy was not yet ready to give favorable consideration.”

When the court changed direction and granted the petition for rehearing on Friday, a fifth vote was needed, and it appears to have been supplied by Kennedy. He may have been swayed by a document that described how the combatant review tribunals worked, a process that the detainee lawyers called “an irremediable sham.”

Since the court accepted the case, administration sources revealed that legislation is under consideration to transfer some Guantanamo detainees to the United States and to release others, ABAJournal.com says in a post earlier today.